A-1323-91
The Minister of Employment and Immigration
(Appellant)
v.
Marisol Escobar Salinas (Respondent)
INDEXED AS: SALINAS V. Canada (MINISTER OF
EMPLOYMENT AND IMMIGRATION) (CA.)
Court of Appeal, Stone, MacGuigan B.A. and Henry
D.J.—Toronto, June 22 and 25, 1992.
Immigration — Refugee status — Appeal from Trial Division
order quashing decision of Refugee Division to reconvene
hearing into refugee status claim — Claim based on alleged
fear of persecution by Panamanian officials — Minister's
attack on Trial Division order based on want of jurisdiction
Immigration Act, s. 68 endowing Refugee Division with powers
and duties in relation to any "proceedings" before it — "Pro-
ceedings" and "hearing" before Refugee Division under Act,
s. 69.1 distinguished — "Proceedings" encompassing entire
matter before Refugee Division including hearing of claim
"Convention refugee" status only protecting claimants found
by Refugee Division to fall within definition — Refugee Divi
sion not functus officio — Determination of claim yet to be
made — Inquiry into change of conditions in respondent's
homeland within general mandate of Refugee Division in
determining claim — Issue herein implicitly decided in Lawal
case — Refugee Division neither lacking nor exceeding juris
diction in deciding to reconvene hearing into refugee status
claim — No sound reason for interfering with decision to
reconvene — Appeal allowed.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Convention Refugee Determination Division Rules,
SOR/89-103, s. 6.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Immigration Act, R.S.C., 1985, c. I-2, ss. 67 (as am. by
R.S.C., 1985 (4th Supp.), c. 28, s. 18), 68 (as am.
idem), 69.1 (as enacted idem), 69.2 (as enacted idem).
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada (Attorney General) v. Public Service Alliance of
Canada, [1991] 1 S.C.R. 614; (1991), 80 D.L.R. (4th)
520; 48 Admin. L.R. 161; 91 CLLC 14,017; 123 N.R.
161; Lawal v. Canada (Minister of Employment and
Immigration), [1991] 2 F.C. 404; (1991), 78 D.L.R. (4th)
522; 48 Admin. L.R. 152; 13 Imm. L.R. (2d) 163 (C.A.).
REFERRED TO:
Longia v. Canada (Minister of Employment and Immigra
tion), [1990] 3 F.C. 288; (1990), 44 Admin. L.R. 264; 10
Imm. L.R. (2d) 312; 114 N.R. 280 (C.A.).
APPEAL from an order of the Trial Division,
[1992] 3 F.C. 221 quashing a decision of the Refugee
Division to reconvene a hearing into the respondent's
claim for refugee status. Appeal allowed.
COUNSEL:
Bonnie J. Boucher for appellant.
Brenda J. Wemp for respondent.
SOLICITORS:
Deputy Attorney General of Canada for appel
lant.
Brenda J. Wemp, Toronto, for respondent.
The following are the reasons for judgment ren
dered in English by
STONE J.A.: This appeal is from an order of the
Trial Division [[1992] 3 F.C. 221] whereby a deci
sion of the Refugee Division dated September 10,
1990, to reconvene a hearing into the respondent's
claim for refugee status in Canada was quashed and
the Refugee Division was ordered to render a deci
sion on the basis of the evidence it had before it on
November 29, 1989, when the hearing, apparently,
was completed. The decision of the Refugee Division
on the merits of the claim is yet to be made.
The respondent is a national of Panama and had
resided there until shortly before she entered Canada
and made her claim for refugee status. The basis for
her claim was alleged fear of persecution by agents of
the state which was headed by General Noriega.
Sometime after November 29, 1989, the political sit
uation in Panama changed when General Noriega
was removed from power as a result of armed inter
vention by the United States.
In April 1990, the Presiding Member of the panel
notified the respondent that the hearing would be
reconvened for the purpose of hearing evidence on
recent changes in her homeland. On September 10,
1990, the panel, after hearing submissions on the
jurisdiction of the Refugee Division to reconvene the
hearing, determined that it could do so. In so ruling
the Presiding Member stated, at pages 18 and 19 of
the transcript:
The changes that occurred in Panama, are in the panel's opin
ion, part of these generally recognized facts and information
that is within the specialized knowledge of the panel.
The first obligation of the panel, as it appears from the Act and
the rules, is to do anything that is necessary to provide a full
and proper hearing, the purpose of which is to establish the
true facts of the refugee claim. And this includes taking into
consideration all relevant evidence.
I would like to refer now to the United Nations High Commis
sion for Refugees Handbook, 1979, paragraph 196. The hand
book discusses the shared burden of adducing evidence
between the examiner and the claimant.
The emphasis in the handbook is on how the examiner may
help establish the claim, but the purpose of the investigation of
course, is to determine the validity of the claim. Nothing in the
handbook suggests that the examiner is limited to looking only
at the evidence provided by the claimant.
Until a decision is rendered, the panel still has the capacity to
consider relevant facts such as changes in the country of ori
gin. Technically the hearing is not concluded until the decision
is rendered.
Of course, in the interest of fairness, the claimant must be
given an opportunity to respond to any new evidence. And this
panel fulfils its obligation to provide a full and fair hearing and
maintaining the fairness of the procedure, by reconvening this
hearing today.
In the Trial Division, the respondent sought relief
in the nature of certiorari, mandamus and prohibition
pursuant to section 18 of the Federal Court Act
[R.S.C., 1985, c. F-7]. It was contended by the
respondent that because of the provisions of subsec
tion 67(1) of the Immigration Act [R.S.C., 1985, c.
I-2 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18)1,
the Trial Division was without jurisdiction to grant
the particular relief, but the learned Motions Judge
rejected that submission. That subsection reads:
67. (1) The Refugee Division has, in respect of proceedings
under sections 69.1 and 69.2, sole and exclusive jurisdiction to
hear and determine all questions of law and fact, including
questions of jurisdiction.
The Motions Judge was of the view that, while the
decision of September 10, 1990, was interlocutory in
nature, it was not beyond review in the Trial Division
because the Refugee Division, in ruling as it did, had
exceeded or failed to exercise its jurisdiction. As the
Judge put it, at page 241 of the report:
As the ruling involves a purely procedural matter, not necessa
rily dependent upon the sensitivity, accumulated experience,
and broad powers of the Board to conduct proceedings in a
unique area of the law, special deference need not be given to
the Board's decision on this matter. Accordingly, whether sub
section 67(1) will be effective to oust this Court's review will
ultimately depend upon whether the Board in making its ruling
exceeded or failed to exercise its jurisdiction or violated a prin
ciple of natural justice as alleged by the applicant.
The appellant's attack on the order below is based
on want of jurisdiction in the Trial Division. Counsel
contends that jurisdiction to determine whether or not
to reconvene the hearing fell within the sole and
exclusive authority of the Refugee Division under
subsection 67(1) and that the Trial Division was not
entitled to interfere. Counsel also submits that the
Refugee Division acted within its jurisdiction when it
decided to reconvene the hearing because its decision
on the merits had yet to be made. She also submits
that, at very least, a decision of this kind could not be
reviewed by the Trial Division under section 18
unless it could be shown to have been patently unrea
sonable: Canada (Attorney General) v. Public Ser
vice Alliance of Canada, [1991] 1 S.C.R. 614, per
Sopinka J., at pages 628-629.
Without passing on the question of whether the
Trial Division had jurisdiction to make the order
below, which question we regard as substantial, we
are all of the view, with respect, that this appeal must
succeed on the basis that the Refugee Division did
not exceed its jurisdiction. In coming to this conclu
sion we have had regard to the following provisions
of the Immigration Act [subsection 67(2) (as am.
idem), section 68 (as am, idem), section 69.1 (as
enacted idem)]:
67....
(2) The Refugee Division, and each member thereof, has all
the powers and authority of a commissioner appointed under
Part I of the Inquiries Act and, without restricting the general
ity of the foregoing, may, for the purposes of a hearing,
(d) do any other thing necessary to provide a full and proper
hearing.
68. (1) The Refugee Division shall sit at such times and at
such places in Canada as are considered necessary by the
Chairman for the proper conduct of its business.
(2) The Refugee Division shall deal with all proceedings
before it as informally and expeditiously as the circumstances
and the considerations of fairness permit.
(3) The Refugee Division is not bound by any legal or tech
nical rules of evidence and, in any proceedings before it, it
may receive and base a decision on evidence adduced in the
proceedings and considered credible or trustworthy in the cir
cumstances of the case.
(4) The Refugee Division may, in any proceedings before it,
take notice of any facts that may be judicially noticed and, sub
ject to subsection (5), of any other generally recognized facts
and any information or opinion that is within its specialized
knowledge.
(5) Before the Refugee Division takes notice of any facts,
information or opinion, other than facts that may be judicially
noticed, in any proceedings, the Division shall notify the Min
ister, if present at the proceedings, and the person who is the
subject of the proceedings of its intention and afford them a
reasonable opportunity to make representations with respect
thereto.
69.1.. .
(5) At the hearing into a claim, the Refugee Division
(a) shall afford the claimant a reasonable opportunity to pre
sent evidence, cross-examine witnesses and make represen
tations; and
(9) The Refugee Division shall determine whether or not the
claimant is a Convention refugee and shall render its decision
as soon as possible after completion of the hearing and send a
written notice of the decision to the claimant and the Minister.
Counsel for the respondent also relies on section 6 of
the Convention Refugee Determination Division
Rules, SOR/89-103, which reads:
6. These Rules are not exhaustive and where any matter that
is not provided for in these Rules arises in the course of any
proceeding before the Refugee Division, the Refugee Division
may take whatever measures are necessary to provide the par
ties with a full and proper hearing and to dispose expeditiously
of the matter.
In general, the provisions of section 68 endow the
Refugee Division with powers and duties in relation
to any "proceedings" before it. It is apparent that a
distinction has thus been drawn by Parliament
between "proceedings" and a "hearing" before the
Refugee Division which is to be conducted in the
manner required by section 69.1 of the Act. A "hear-
ing" is but a step, albeit an important step, in any
"proceedings" which is a wider term encompassing
the entire matter before the Refugee Division includ
ing the hearing of the claim itself.
The respondent submits that the Motions Judge
was correct in making the order below because the
decision of September 10, 1990, has undesirable
implications for the process by which claims for refu
gee status are determined by the Refugee Division. A
claimant who has already testified at a hearing in
support of a claim, will be faced with having to meet
a new assertion to the effect that the basis of his or
her fear has been removed because of a change of
conditions in the country of origin. This would cause
prejudice to a claimant because it might encourage
the Refugee Division to delay its decisions rather
than render them "as soon as possible" as the statute
requires. If, instead, the Refugee Division, basing its
decision on the evidence it has already heard, ruled in
favour of a claimant, the Minister would still be able
to initiate proceedings pursuant to subsection 69.2(1)
of the Act in light of the change of conditions. That
subsection reads:
69.2 (1) The Minister may make an application to the Refu
gee Division for a determination whether any person who was
determined under this Act or the regulations to be a Conven
tion refugee has ceased to be a Convention refugee.
On the other hand, as the appellant points out, the
purpose of the legislation is to extend the protection
of "Convention refugee" status only to those claim
ants who may be found by the Refugee Division to
fall within the definition on the basis of evidence
adduced and of such facts as are noticed pursuant to
subsections 68(4) and (5) of the Act. That being so, it
is argued that evidence as to change of conditions
should be addressed in the same proceedings rather
than be left to be addressed in new proceedings initi
ated by the Minister subsequent to the Refugee Divi
sion's determination. It seems to us that there is force
to these submissions.
Nor, in our view, was the Refugee Division functus
officio. It had yet to make a determination of the
claim. Until it did, the proceedings were still pending
and finality had not been reached. In order to arrive
at its decision, the Refugee Division could exercise
the powers conferred by and under the statute pro
vided it did so properly by giving the respondent an
opportunity to be heard at the reconvened hearing.
That it did. Inquiry into any change of conditions in
the respondent's homeland comes within the general
mandate of the Refugee Division in determining the
claim. The Division should be allowed to complete
its statutory task.
In our view the issue has already been implicitly
decided for this Court in Lawal v. Canada (Minister
of Employment and Immigration), [1991] 2 F.C. 404,
where Hugessen J.A. held for the Court that the only
way for the Refugee Division, after the end of a hear
ing but before decision, to consider new evidence
beyond that of which it might take judicial notice was
by reopening the hearing, and that it should do so.
This Court's decision in Longia v. Canada (Minister
of Employment and Immigration), [1990] 3 F.C. 288,
relied on by the Motions Judge, applies only where
the Refugee Division has already reached a decision.
In summary, we can see no basis for finding that the
Refugee Division lacked jurisdiction or exceeded its
jurisdiction by deciding to reconvene the hearing into
the respondent's claim to be a Convention refugee in
order to hear evidence of any change of conditions in
Panama. In short, no sound reason has been shown to
exist for allowing any interference with the decision
to reconvene.
For the foregoing reasons the appeal will be
allowed with costs, the order of the Trial Division
dated December 17, 1991, will be set aside and the
respondent's claim for Convention refugee status will
be referred back to the Refugee Division for a contin
uation of the hearing pursuant to its decision of Sep-
tember 10, 1990, for determination in accordance
with the provisions of the Immigration Act and the
regulations made thereunder.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.